Neutral Citation: 2007 ONFSCDRS 250 FSCO A06-002002

BETWEEN:

MAHESH ANTHONY JURY Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Denise Ashby Heard: November 15, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Jury Aldo Picchetti for RBC General Insurance Company

Issues:

The Applicant, Mahesh Anthony Jury, was injured in a motor vehicle accident on July 20, 2005. He applied for statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ RBC denied income replacement benefits, certain medical benefits and attendant care benefits. The parties were unable to resolve their disputes through mediation, and Mr. Jury applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Should Mr. Jury’s arbitration be dismissed without a hearing pursuant to Rule 68, or in the alternative, deemed to have been withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code?
Is Mr. Jury liable to pay RBC’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

Mr. Jury’s arbitration is deemed to be withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code.
Mr. Jury shall pay RBC’s expenses in respect of the arbitration fixed at $1,000.00, pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.

CHRONOLOGY:

On July 20, 2005, Mr. Jury was walking in a parking lot when he wss struck by a vehicle.² On August 30, 2006, his Application for Arbitration was filed with the Commission.³ Commencing on or about August 19, 2007, counsel began numerous unsuccessful attempts to communicate with Mr. Jury.⁴

On October 17, 2006, a Notice of Pre-hearing was issued in respect of a pre-hearing scheduled for March 6, 2007. On February 28, 2007, a Notice of Rescheduled Hearing was issued rescheduling the pre-hearing to May 17, 2007. On April 27 2007, a further Notice of Rescheduled Hearing was issued rescheduling the pre-hearing to August 9, 2007. On August 14, 2007, a further Notice of Rescheduled Hearing was issued rescheduling the pre-hearing to November 15, 2007. This Notice advised that the pre-hearing scheduled for November 15, 2007 was peremptory to Mr. Jury.⁵

On November 15, 2007, RBC brought an oral motion for the dismissal of the arbitration without a hearing pursuant to Rule 68 of the Dispute Resolution Practice Code (the “Code”), or in the alternative, a finding that Mr. Jury was deemed to have withdrawn his application for arbitration pursuant to Rule 70. I set dates for the return of a written hearing and a Notice of Hearing of Preliminary Issue was issued on November 21, 2007.

On November 27, 2007, my letter of November 15, 2007, sent by same day courier, was returned to the Commission. The Notification of Return Shipment noted that the address, which was the same address which was his last known address, as contained in the records of the Dispute Resolution Group, was a “bad address.” As a consequence, Mr. Jury did not receive my letter which set out my order removing his counsel as representative of record or the particulars of the motion to dismiss the arbitration.

EVIDENCE AND ANALYSIS:

On November 15, 2007, Mr. Jury’s former representative brought a successful motion, to be removed as representative of record. In support of her motion she filed the affidavit of her law clerk, Gaya Satgunalingam. I rely on Ms. Satgunalingam’s affidavit and its exhibits, RBC’s submissions and the various Notices issued by the Commission in respect of this proceeding.

The Affidavit establishes that in August 2007 Mr. Jury’s former counsel lost contact with him. She was unable to communicate with Mr. Jury at the address contained in the records of the Dispute Resolution Group. As well, the Commission was unable to effect service of my letter dated November 15, 2007 at that address. Therefore, I find that Mr. Jury did not have actual notice of these proceedings.

RBC submitted that Mr. Jury’s failure to participate is evidence that he has no intention of proceeding with his claim. Therefore, it would be just and efficient that this proceeding be dismissed without a hearing.

Rule 68 of the Code provides for the dismissal of a proceeding where an adjudicator determines that the proceeding is “frivolous, vexatious or is commenced in bad faith.” Before taking such steps an arbitrator must give written notice to all parties of his or her intention to dismiss the proceeding and provide the parties an opportunity to make submissions in respect of the grounds that the party objects to the dismissal.

The Rule 68 test is necessarily high. The Supreme Court has identified the Insurance Act as consumer protection legislation.⁶ The phrase “frivolous, vexatious or is commenced in bad faith,” is undefined in the Insurance Act, Schedule, Code or Statutory Powers Procedure Act. I interpret the phrase to require reliable evidence that Mr. Jury wilfully brought an unmeritorious claim, conducted the action either deceptively or maliciously or failed to fulfill a duty or obligation in a manner inconsistent with honest mistake.⁷

In a number of cases dealing with dismissal without hearing, I have found the provisions of Rule 70 to be of assistance in ensuring that abandoned proceedings are dealt with in the most just, quickest and least expensive fashion.⁸ In those cases, I found there had been a constructive withdrawal in keeping with Quattrocchi and State Farm Mutual Automobile Insurance Company.⁹

The evidence before me establishes that Mr. Jury has abandoned his claim. He has done nothing since the Application for Arbitration was filed. However, there is no evidence to support a conclusion that his claim was unmeritorious or he has conducted the arbitration either deceptively or maliciously or failed to fulfill a duty or obligation in a manner inconsistent with honest mistake.

On the basis of the foregoing, I conclude the evidence fails to meet the Rule 68 test. Therefore, the matter is not dismissed without a hearing. However, I find that Mr. Jury has abandoned his claim such that it shall be deemed to have been withdrawn pursuant to Rule 70 of the Code.

EXPENSES:

I exercise my discretion to award State Farm its expenses incurred in the arbitration fixed at $1,000.00.

December 13, 2007

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario